Protest Decisions

September 19, 1996

VIA UPS OVERNIGHT

Garlin Carter

September 19, 1996

Page 1

Garlin Carter

4049 Groveport Road

Obetz, OH 43207

Jimmy H. Duff, President

Teamsters Local Union 413

555 E. Rich Street

Columbus, OH 43215

Mike Wellman, Secretary-Treasurer

Teamsters Local Union 413

555 E. Rich Street

Columbus, OH 43215

Garlin Carter

September 19, 1996

Page 1

Re:  Election Office Case No. P-927-LU413-CLE

Gentlemen:

A pre-election protest was filed pursuant to Article XIV, Section 2(b) of the Rules for the IBT International Union Delegate and Officer Election (“Rules”) by Garlin Carter, a member of Local Union 413.  Mr. Carter alleges that the officers of the local union used union funds to promote the candidacy of Ron Carey, incumbent general president and candidate for reelection, in the August 1996 issue of Local 413 Express, in violation of the Rules.  Mr. Carter asserts that the coverage of the IBT Convention in this publication is replete with “lies, misrepresentations, and mis-leading [sic] information, which is slanted against General President Ron Carey.”

This protest was investigated by Regional Coordinator Joyce Goldstein

The August 1996 issue of Local 413 Express is 16 pages in length.  Pages one and two consist of a report on the IBT Convention by the president and secretary-treasurer of Local

Union 413, Jimmy H. Duff and Mike Wellman, respectively.  The lead paragraph of the article, in bold print, states as follows:

Garlin Carter

September 19, 1996

Page 1

Ten Million Dollars ($10,000,000) was the estimated cost to our Members for the 1996 Convention . . . what a waste of money, especially considering that the IBT is nearly bankrupt and when you consider that the two issues which desperately needed to be addressed, the STRIKE FUND & INCREASED PENSION BENEFITS, were not.

(Emphasis in original).

The authors attribute the lack of action at the Convention to Mr. Carey’s chairmanship, asserting that he allowed “delays and long speeches . . . to skirt around important issues” because he did not command a majority of the delegates.  While the article lists the accomplishments of the Convention, such as the adoption of a code of ethics for pension and health fund trustees, it presents a considerably longer list of issues not tackled which, according to the authors, the members of Local Union 413 wished to see addressed.[1]   Claiming that this “reform package” would have “expanded democratic rights,” Mr. Duff and Mr. Wellman state:  “The tactics used by the Convention Chairman . . . beginning with the very first vote on allowing the non-elected appointed (by the Chairman) delegates the right to vote, continued throughout the week and as a result, the convention failed to serve the best interests of our Rank & File Members.” 

The second to last paragraph of the article states that Local Union 413’s retirees who traveled to the convention were not permitted to attend.  The authors contend that “[h]istorically, our Retirees . . . were honored Convention guests, treated with well-deserved respect.  Not so at this Convention.” 

In the final paragraph of their report, Mr. Duff and Mr. Wellman state that they spoke with many other local union officers at the Convention and one officer in particular “stood out.”  Describing this officer as “outspoken in his criticism of the stall tactics and parliamentary maneuvers exercised by the Convention Chairman,” the authors quote him as follows:  “This convention cost our Rank & File Members $10 million of their hard-earned money, and for all practical purposes accomplished next to nothing.”   

The third page of Local 413 Express lists the candidates nominated for International office at the Convention and the number of delegates received by each candidate.

Page four contains a one-paragraph report on the Convention by retirees Charlie Chambers and Jack Gordon.  Stating that at past conventions, retirees observed the proceedings from the gallery, the authors report that they were denied entry to the 1996 Convention.  The paragraph concludes:  “We’re sorry to report as far as we were able to find out, nothing was brought up, nor action taken on improvements in the Retiree Program.”

Garlin Carter

September 19, 1996

Page 1

The remainder of the publication consists of reports and information of interest to Local Union 413 members, such as the resolution of grievances, and bears no relation to the IBT Convention.

In support of his claim that the Local 413 Express is “slanted” against Mr. Carey,

Mr. Carter states that the retirees were not elected delegates and that members of the local union “had been made aware that pension improvements would NOT be an issue of the convention.”  (Emphasis in original).  The protester further states that the publication gives members the impression that Mr. Duff and Mr. Wellman were Convention delegates when in fact they were not.  Mr. Carter concludes:  “Members of the elected STAND UP Delegate Slate have not been afforded any opportunity to address convention issues to the membership in this newsletter.”

Article VIII, Section 8(a) of the Rules states that a union-financed publication or communication may not be “used to support or attack any candidate or the candidacy of any person.”  In reviewing union-financed communications for improper campaign content, the Election Officer looks to the tone, content and timing of the publication.  Martin, P-010-IBT-PNJ et al. (August 17, 1995) (decision on remand), aff’d, 95 - Elec. App. - 18 (KC) (October 2, 1995).  The Election Officer also considers the context in which the communication appeared.  Chalfant, P-882-JC28-PNW et seq. (September 6, 1996); Rodriguez, P-888-LU630-CLA (September 6, 1996).

In Martin, the Election Officer recognized that union officers and officials have a “right and responsibility to exercise the powers of their office and to advise and report to the membership on issues of general concern” (quoting Camarata v. International Bhd. of Teamsters, 478 F. Supp. 321, 330 (D.D.C. 1979), aff’d, 108 L.R.R.M. (BNA) 2924 (D.C. Cir. 1981)).  However, the Election Officer also recognized in Martin that:

. . . an otherwise acceptable communication may be considered campaigning if it goes on to make a connection with the election or election process, it involves excessive direct or indirect personal attacks on candidates, or, alternatively, involves lavish praise of candidates.  Otherwise legitimate coverage of the activities of a union official running for office may constitute campaigning if it is excessive.

Because of the close proximity of the International officer election, the standard of scrutiny has increased.

Garlin Carter

September 19, 1996

Page 1

In applying these tests to the August issue of Local 413 Express, the Election Officer notes that the publication does not report on the election of International officers other than the report of nominations on page three.  As in Rodriguez and Chalfant, Mr. Carey is extensively criticized in his capacity as Convention chair in the article by Mr. Duff and Mr. Wellman, but, with one exception, there is no reference to Mr. Carey’s candidacy or his campaign.[2]  

Mr. Carey’s political opponent, Mr. Hoffa, is not mentioned at all.  No connection to the ongoing electoral process is made. 

In Chalfant, the Election Officer held that union-funded publications “may contain opinions of the manner in which the Convention was organized or managed . . . so long as such editorializing does not make a connection with the campaign or the International officer election.”  The Election Officer further stated:

The actions of the general president at the Convention are not only newsworthy, they invite comment.  So long as such commentary does not establish a link to the election or campaign, and is limited to the performance of Mr. Carey’s office as general president or Convention chair, it does not violate the Rules.    

  The Election Officer has also stated, however, that under the “tone, content and timing test,” a union-financed publication “may convey support or opposition to a candidate even if overt campaign material is not present.”  Rodriguez.  In that case, the Election Officer held that while the tone of the protested delegates’ report was “very critical” of Mr. Carey in his role as Convention chairman,[3] “the Rules do not generally restrict the ability of IBT members to criticize the conduct of legitimate union business by their leaders.”  The Election Officer found that the delegates’ criticism of Mr. Carey was “not excessive, in view of their substantive disagreements with [him] on the issues involved in the matters reported.”  Accordingly, the Election Officer stated, the report “does not rise to the extra level of a political attack” prohibited by the Rules.             

The tone of Mr. Duff’s and Mr. Wellman’s report on the Convention is undisputably critical of Mr. Carey.  The authors attribute the failure of the Convention to act on issues of importance to the members of Local Union 413 to the “stall tactics” and other strategy on the part of Mr. Carey and his supporters.   Under the standards enunciated in Chalfant and Rodriguez, however, this article does not violate the Rules.  See also Halberg et al., P-900-LU174-PNW et seq. (September 18, 1996); Hoffa, P-871-IBT-EOH (September 13, 1996).

Likewise, the report in Local 413 Express by retirees Charlie Chambers and Jack Gordon, which contains no direct reference to Mr. Carey, does not constitute a Rules violation.

Garlin Carter

September 19, 1996

Page 1

In addition to his claim of slanted coverage against Mr. Carey, Mr. Carter raises several objections to Mr. Duff’s and Mr. Wellman’s report on the Convention:  (1) the retirees were not elected delegates; (2) Mr. Duff and Mr. Wellman were not elected delegates, contrary to what the article would have members believe; and (3) the Local Union 413 membership “had been made aware that pension improvements would NOT be an issue of the convention.”  (Emphasis in original). 

There is nothing in the Rules that limits union members to receiving information about the Convention from delegates’ reports only.   In Chalfant, for example, the protesters objected to articles about the Convention published in the Washington Teamster, the official publication of Joint Council 28.    The Election Officer, stating that the convention “is an event of significant interest to many IBT members,” held that “[i]nforming members of the events of the Convention through union publications is a legitimate duty of local union, joint council, or conference officers.”  See also Blanchet, P-924-JC7-CSF (September 18, 1996).  Accordingly, Mr. Duff and Mr. Wellman, the principal officers of Local Union 413, were entitled to include their report on the Convention in the August 1996 issue of Local 413 Express.

In regard to Mr. Carter’s contention that the local union membership had been told that a pension increase would not be addressed at the Convention, this fact does not preclude Mr. Duff and Mr. Wellman from raising the issue in their report.  The Election Appeals Master has stated that “[A]bsent a political endorsement or attack, as established by the communication’s tone, content, and timing, the Election Rules do not empower me to intrude upon the journalistic process of a union publication.”  In Re: Lamy, 95 - Elec. App. - 53 (KC) (January 11, 1996).

Lastly, Mr. Carter states that the members of the Stand Up Delegate Slate were not given an opportunity to report on the Convention to the membership in the August 1996 edition of the Local 413 Express.  The Election Officer has held that “a union-financed communication does not violate the Rules merely because it fails to treat opposing ideas or opinions.”  Volpe et al.,

P-828-IBT-MGN et seq. (July 11, 1996), aff’d, 96 - Elec. App. - 218 (July 23, 1996).  In Martin, supra, the Election Officer incorporated the reasoning of the court in Camarata, quoting:

Elected union officials . . . are not ordinarily required to give space therein to the expression of contrary views . . . So long as such coverage is addressed to the regular functions, policies and activities of such incumbents as officers involved in matters of interest to the membership and not as candidates for reelection, there is not a violation of [Section]401(c) [of the LMRDA].

For the reasons set forth above, the protest is DENIED.

Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within one day of receipt of this letter.  The parties are reminded that, absent extraordinary circumstances, no party may rely upon evidence that was not presented to the Office of the Election Officer in any such appeal.  Requests for a hearing shall be made in writing and shall be served on:

Garlin Carter

September 19, 1996

Page 1

Kenneth Conboy, Esq.

Latham & Watkins

885 Third Avenue, Suite 1000

New York, NY 10022

Fax (212) 751-4864

Copies of the request for hearing must be served on the parties listed above as well as upon the Election Officer, 400 N. Capitol Street, Suite 855, Washington, DC 20001, Facsimile

(202) 624-3525.  A copy of the protest must accompany the request for a hearing.

Sincerely,

Barbara Zack Quindel

Election Officer

cc:               Kenneth Conboy, Election Appeals Master

Joyce Goldstein, Regional Coordinator